State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1952

State of Minnesota,
Respondent,

vs.

Raymond Mark Derby,
Appellant.

Filed September 2, 2025
Affirmed in part, reversed in part, and remanded
Frisch, Chief Judge

Pipestone County District Court
File No. 59-CR-22-202

Keith Ellison, Attorney General, Lisa Lodin, Assistant Attorney General, St. Paul,
Minnesota; and

Damain Sandy, Pipestone County Attorney, Pipestone, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Frisch, Chief Judge; and
Jesson, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
FRISCH, Chief Judge
In this direct appeal from his convictions for criminal vehicular homicide, driving
after cancelation, careless driving, and fourth-degree driving while impaired (DWI),
appellant argues that the district court abused its discretion by permitting the state to
introduce a prejudicial photo of the victim and an impermissible opinion from an expert
witness during trial. He contends that the cumulative effect of these two errors warrants a
new trial. Appellant also argues that he was improperly convicted of and sentenced for
two lesser-included offenses and that his gross misdemeanor sentence must be correct ed.
We affirm in part because, even assuming the district court abused its discretion in its
admission of such evidence, appellant has not shown that he was deprived of a fair trial.
But we reverse and remand for resentencing.
FACTS
Respondent State of Minnesota charged appellant Raymond Mark Derby with five
counts: criminal vehicular homicide— driving in a negligent manner under the influence
of alcohol pursuant to Minn. Stat. § 609.2112, subd. 1(a)(2)(i) (2022); criminal vehicular
homicide—driving in a grossly negligent manner pursuant to Minn. Stat. § 609.2112,
subd. 1(a)(1) (2022); driving after cancelation inimical to public safety (IPS) pursuant to
Minn. Stat. § 171.24, subd. 5 (2022); fourth-degree DWI pursuant to Minn. Stat.
§ 169A.20, subd. 1(1) (2022); and careless driving pursuant to Minn. Stat. § 169.13,
subd. 2(a) (2022). The facts below were elicited during Derby’s jury trial.
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On May 17, 2022, around 8:30 p.m., Derby and his girlfriend A.H. were driving
home from a casino. Derby was driving his truck, and A.H. was in the passenger seat.
While traveling at around 60 miles per hour, the truck drifted off the highway. The truck
traveled “along the side of the shoulder and the grass” before “curv[ing] back up on the
road.” As the truck started going toward the road, “it trip[ped] and roll[ed].” A.H. was
ejected from the truck. Police officers and EMS arrived at the crash scene. A.H. was
pronounced dead at the scene. Derby was standing near the truck and told an officer that
A.H. had “pulled the wheel” while Derby was driving “causing the accident.” This officer
did not notice any signs of impairment.
Another officer who later arrived at the scene noted that Derby’s speech “appeared
slurred and slow,” and that he had “red bloodshot eyes.” This officer “could smell an odor
of an alcoholic beverage” on Derby’s breath. Based on these observations, the officer
applied for a search warrant of Derby’s blood, which was later issued. Derby was
transported to the hospital. A blood sample was taken at 10:25 p.m. and sent to the
Minnesota Bureau of Criminal Apprehension (BCA) for analysis. The sample reflected an
alcohol concentration of 0.062. A forensic scientist performed a “retrograde
extrapolation,” estimating that, given the alcohol concentration in the sample and a timeline
of events after the crash, Derby’s alcohol concentration was between 0.07 to 0.10 at the
time of the crash.
During a pretrial hearing, Derby’s counsel objected to the admission of a photograph
of A.H. taken at the crash scene. Derby argued that the photo is “meant to inflame the jury
to get them even madder” at him and that there is “no dispute here that [A.H.] was dead on
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the road.” Derby also noted that the state could have used photos of A.H. on the ground
“covered up” but the state instead chose a “more prejudicial” photo depicting “[A.H.] lying
on the ground with her shirt pulled up, exposing her bra and her bare mid-section.” The
district court overruled the objection.
During Derby’s jury trial, the state offered testimony from responding police
officers, a police officer trained in advanced crash reconstruction, the medical provider
who drew Derby’s blood sample, and the BCA forensic scientist. During the
crash-reconstruction officer’s testimony, the state asked the officer if they recalled “what
[Derby’s] driver’s license status was” at the time of the crash. The officer testified that
Derby’s license was “canceled IPS” and—over Derby’s objection—opined that this status
was a factor that contributed to the crash.
Derby testified in his defense and recounted that the car crash was caused by A.H. ,
who was hitting Derby and grabbed the steering wheel at the time of the crash. Derby
testified that A.H. was “irate” about losing money gambling and was intoxicated when the
couple left the casino.
The jury found Derby guilty of criminal vehicular homicide —driving under the
influence of alcohol, driving after cancelation, DWI, and careless driving. The jury found
Derby not guilty of criminal vehicular homicide—driving in a grossly negligent manner.
The district court entered convictions for the four guilty verdicts and sentenced Derby to
48 months’ commitment for criminal vehicular homicide. The district court also sentenced
Derby to concurrent sentences for the other three convictions, including 365 days for
driving after cancelation.
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Derby appeals.
DECISION
I. The cumulative effect of any evidentiary errors did not deny Derby a fair trial.
Derby argues that the district court abused its discretion in its evidentiary rulings
during trial because it allowed impermissible opinion testimony and admitted a prejudicial
photo of A.H. He argues that the cumulative effect of these errors warrants a new trial.
“An appellant may be entitled to a new trial in rare cases where the errors, when
taken cumulatively, have the effect of denying the appellant a fair trial.” State v. Fraga,
898 N.W.2d 263, 278 (Minn. 2017) (quotation omitted). In considering a claim of
cumulative error we “look to the egregiousness of the errors and the strength of the State’s
case.” Id. “Where the evidence of guilt is strong, and the case is not close factually, we
are less inclined to order a new trial for cumulative error.” State v. Williams, 908 N.W.2d
362, 366 (Minn. 2018) (quotation omitted). We assume without deciding that the district
court’s evidentiary rulings were erroneous and turn our attention to “strength of the State’s
case.” Fraga, 898 N.W.2d at 278.
To prove criminal vehicular homicide—under the influence of alcohol, the state was
required to prove beyond a reasonable doubt that (1) Derby caused the death of A.H.,
(2) “as a result of operating a motor vehicle,” (3) in a negligent manner, (4) while under
the influence of alcohol. Minn. Stat. § 609.2112, subd. 1(a)(2)(i). Derby did not allege
that A.H.’s death was caused by anything other than the crash, and he did not deny that he
was driving the truck at the time of her death. And the state presente d strong evidence as
to the remaining elements of the offense. The officer who reconstructed the crash opined
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that the truck gradually veered off the road, that the “driver failed to negotiate the curve
and went off the road . . . and then at some point . . . steered back onto the road and that’s
when the [truck] tripped and began to roll,” and that “distraction” or “impairment” was
typical in these kinds of situations. The state also offered strong evidence that Derby was
under the influence of alcohol based on his 0.062 alcohol concentration from a sample
taken several hours after the crash and the expert’s extrapolation indicating that Derby’s
alcohol concentration was between 0.07 and 0.10 at the time of the crash.
We cannot conclude that, even assuming the district court abused its discretion in
admitting the challenged evidence, the admission of the photo and the opinion about
Derby’s license status affected the jury’s verdict. The state’s case was strong and was not
factually close. See Fraga, 898 N.W.2d at 278-79. We note that Derby does not assert
that either of the asserted evidentiary errors individually entitles him to relief or explain
how these alleged errors taken together impacted his right to a fair trial. We conclude that
the admission of a single crime scene photograph and limited testimony about Derby’s
driving status, when taken together, were not egregious and did not “tip the scales” toward
producing an unfair result. See id. Because Derby has not shown cumulative error that
affected his right to a fair trial, he is not entitled to a new trial. Id.
II. Derby is entitled to resentencing to correct sentencing errors.
Derby argues, and the state concedes, that the district court erred by (1) entering
convictions for two lesser-included offenses and (2) sentencing him to 365 days for a gross
misdemeanor. We agree.
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First, the district court impermissibly convicted Derby of two lesser-included
offenses. A defendant “may be convicted of either the crime charged or an included
offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2022). A lesser-included offense
includes “a crime necessarily proved if the [greater offense] were proved.” Id., subd. 1(4).
And a crime is necessarily proved “if it is impossible to commit the greater offense without
committing the lesser offense.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006).
The jury found Derby guilty of criminal vehicular homicide —driving under the
influence of alcohol, driving after cancelation, fourth-degree DWI, and careless driving.
We agree that the latter two charges are included offenses in his criminal- vehicular-
homicide offense. The state was required to prove that Derby negligently operated a
vehicle while under the influence of alcohol for the criminal-vehicular-homicide offense,
which necessarily proved that Derby was driving while under the influence of alcohol and
was operating a vehicle in a manner that endangered others. See Minn. Stat. §§ 169A.20,
subd. 1(1) (DWI), 169.13, subd. 2(a) (careless driving).
Second, the district court sentenced Derby to 365 days for gross -misdemeanor
driving after cancelation. The district court erred because the maximum sentence
authorized by law for a gross misdemeanor is 364 days. Minn. Stat. § 609.0342(a) (2024).
We therefore remand to the district court for resentencing. On remand, the district
court must vacate Derby’s convictions and sentences for DWI and careless driving while
leaving the jury’s guilty verdicts in place, and correct Derby’s gross-misdemeanor
sentence. See State v. Woods, 961 N.W.2d 238, 248 (Minn. 2021).
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III. Derby’s arguments in his pro se supplemental brief are waived.
Derby asserts in a pro se supplemental brief that the district court violated his civil
and constitutional rights including by being biased and discriminating against him.
A pro se appellant’s assertions are waived if they “contain[] no argument or citation
to legal authorities” to support the arguments. State v. Krosch, 642 N.W.2d 713, 719
(Minn. 2002). Such arguments are waived and need not be considered on appeal “unless
prejudicial error is obvious on mere inspection.” Id. at 719-20 (quotation omitted). And
factual assertions must also be supported by citation to the record. Hecker v. Hecker , 543
N.W.2d 678, 681 n.2 (Minn. App. 1996), aff’d, 568 N.W.2d 705 (Minn. 1997); see State
v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) (refusing to consider portions of a pro se
brief that contained only argument and that was unsupported by the facts in the record).
Derby’s brief contains neither citations to the record nor legal authority, nor specific
allegations of improper behavior by the district court. Thus, his assertions are waived.
And because we discern no obvious prejudicial error following our careful inspection of
the record, we do not consider these arguments. Krosch, 642 N.W.2d at 719-20 (quotation
omitted).
Affirmed in part, reversed in part, and remanded.